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[2017] ZALCJHB 173
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Mooki v CCMA and Others (JR772/15) [2017] ZALCJHB 173 (3 February 2017)
THE
LABOUR COURT OF SOUTH AFRICA
JOHANNESBURG
Not reportable
Case no: JR 772/15
OSESILE
VINCENT
MOOKI
Applicant
and
CCMA First
Respondent
COMMISSIONER
LAZARUS MATLALA Second
Respondent
ROYAL
BAFOKENG
ADMINISTRATION Third
Respondent
Heard
on: 1 February 2017
Delivered: 3 February 2017
JUDGMENT
VAN NIEKERK J
Introduction
[1]
This is an application to review and
set aside an arbitration award issued by the respondent (the
commissioner). In his award, the
commissioner found that the
applicant had been fairly dismissed by the third respondent.
[2]
The applicant was employed by the third
respondent during March 2013 as a publications officer. He was
dismissed in September 2009,
after having been found guilty of four
of seven charges of misconduct levelled against him. I do not intend
to burden this judgment
with a repetition of the conduct of the
applicant, or the precise nature of the charges on which he was found
guilty. These are
fully canvassed in the commissioner’s award
and it is sufficient to state for present purposes that the applicant
was dismissed
for his failure to carry out instructions given to him
in relation to his duties as a publications officer in respect of two
publications
produced by the third respondent or under its auspices,
as well as charges of disclosing organisational and/or confidential
information
to third parties in circumstances where the applicant had
no right to disclose that information in the third party no right to
receive it. As appears from the commissioner’s summary of the
evidence, the applicant’s primary defences were not so
much as
to deny the conduct that formed the subject of the charges, but to
put up explanations and reasons that he considered should
exculpate
him.
[3]
Given the nature of the grounds for review,
to which I refer in some detail below, the present application turns
largely on the
commissioner’s assessment of the evidence and
whether sufficient evidence served before him to sustain the
conclusions to
which he came, given the applicable legal principles.
These also discussed in some detail below.
The
grounds for review
[4] The grounds for review are broadly
stated. In essence, the applicant’s compliant is directed at
the commissioner’s
assessment of the evidence before him, and
his failure to have regard to particular evidence, is misconstruing
the evidence of
certain witnesses and a misdirection in the form of
the nature of the enquiry. In regard to the letter, the applicant had
previously
succeeded at an arbitration hearing and been awarded
compensation. That award was reviewed and set aside on account of an
incomplete
record in the matter remitted for rehearing, resulting in
the award under review.
The
relevant legal principles
[5]
The test established by the Constitutional Court in
Sidumo &
another v Rustenburg Platinum Mines Ltd & others
[2007] 12
BLLR 1097
(CC) and affirmed by the Supreme Court Of Appeal in
Herholdt v Nedbank Ltd (Congress of South African Trade Unions as
amicus curiae
[2013] 11 BLLR 1074
(SCA) empowers this court to
interfere with an award made by an arbitrator if and only if the
arbitrator misconceived the nature
of the enquiry (and thus denied
the parties a fair hearing) or committed a reviewable irregularity
which had the consequence of
an unreasonable result. What this
amounts to is an outcomes-based enquiry, a stringent test aimed to
ensure that this court is
not likely tointerfere with arbitration
awards. The Labour Appeal Court has made clear that reasonableness
does not equate to correctness
and that a decision made by an
arbitrator that is wrong will pass muster provided it is not so wrong
as to be unreasonable (see
Bestel v Astral Operations Ltd &
others
[2011] 2 BLLR 129
(LAC) per Davis JA, who at paragraph 18
of the judgment emphasised the need to distinguish between reviews
and appeals).
[6]
The manner in which the review court should assess the evidence that
served before an arbitrator to determine the reasonableness
of the
result was the subject of a judgment by the Labour Appeal Court in
Goldfields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v
Commission for Conciliation, Mediation and Arbitration and others
[2014] 1 BLLR 197
(LAC). The LAC (per Waglay JP) held as follows:
In
a review conducted under section 145(2) (a) (ii) of the LRA, the
reviewing court is not required to take into account every factor
individually, consider how the arbitrator treated and dealt with each
of those factors and then determine whether a failure by
the
arbitrator to deal with one or some of the factors amounts to a
process-related irregularity sufficient to set aside the award.
This
piecemeal approach of dealing with the arbitrator’s award as
improper as the reviewing court must necessarily consider
the
totality of the evidence and then decide whether the decision made by
the arbitrator is one that a reasonable decision maker
could make.
[7]
In other words, even if an applicant in a review application is able
to identify some misdirection on the part of the arbitrator
(for
example, as in the present instance, a failure to consider material
facts or to attach weight to relevant evidence or attach
weight to
irrelevant evidence and the like), that is not in itself a basis for
a review for want of reasonableness; the resultant
decision must fall
outside of a band of decisions to which a reasonable decision-maker
could come on the same material.
[8] The LAC more recently affirmed
that while the failure of an arbitrator to apply his or her mind to
issues which are material
to the determination of a case will usually
be held to be an irregularity, before the irregularity will result in
the setting aside
of the award, it must in addition reveal a
misconception of the true enquiry or result in an unreasonable
outcome (see
Head of Dept. of Education v Mofokeng
[2015] 1
BLLR 50
(LAC), at paragraph 30).
In this
judgment, Murphy AJA said the following:
[33]
Irregularities or
errors
in relation to the facts
or
issues, therefore, may or may not produce an unreasonable outcome or
provide a compelling indication that the arbitrator misconceived
the
inquiry.
In
the final analysis, it will depend on the materiality of the error or
irregularity and its relation to the result. Whether the
irregularity
or error is material must be assessed and determined with reference
to the distorting effect it may or may not have
had
upon
the arbitrator’s conception of the inquiry, the delimitation of
the issues to be determined and the ultimate outcome.
If
but for an error or irregularity a different outcome would have
resulted, it will
ex
hypothesi
be
material to the determination of the dispute. A material error of
this order would point to at least a
prima
facie
unreasonable
result. The reviewing judge must then have regard to the general
nature of the decision in issue; the range of relevant
factors
informing the decision; the nature of the competing interests
impacted upon by the decision; and then ask whether a reasonable
equilibrium has been struck in accordance with the objects of the
LRA. Provided the right question was asked and answered by the
arbitrator, a wrong answer will not necessarily be unreasonable. By
the same token, an irregularity or error material to the
determination
of the dispute may constitute a misconception of the
nature of the enquiry so as to lead to no fair trial of the issues,
with the
result that the award may be set aside on that ground alone.
The arbitrator however must be shown to have diverted from the
correct
path in the conduct of the arbitration and as a result failed
to address the question raised for determination.
Analysis
[9]
In the present instance, the applicant’s grounds for review are
not cast in terms that reflect the enquiry that the court
must
undertake. In particular, the grounds articulated both in the
founding and supplementary affidavits do not make out a case
to the
effect that the outcome of the proceedings under review was one that
fell outside of the band of decisions to which a reasonable
decision-maker could come on the available material. It is not
sufficient, as the applicant has done, to record a litany of
complaints
that amount to no more than assertions that the
commissioner came to conclusions that were wrong. Commissioners are
allowed to
be wrong; the review test affords them this latitude,
provided that the outcome is not compromised in the sense that is an
unreasonable
one. The two-stage test referred to above preserves the
all-important distinction between appeals and reviews. Further, in an
application
such as the present, the basis on which the outcome of
arbitration proceedings subject to review is alleged to be
unreasonable
must be specifically pleaded - a failure to do so
reflects a failure to establish a cause of action. The applicant’s
failure
to frame his grounds for review on the proper basis and to
rely in piecemeal fashion on a series of alleged misdirections, in my
view, is in itself a reason to dismiss the present application.
[10]
Be that as it may, even if I were to have regard to the grounds for
review articulated by the applicant, the result would be
no
different. I do not intend to canvass each and every ground for
review – some of them while more directed at the conduct
of the
commissioner then others. My conclusions in regard to all of the
grounds for review raised by the applicant, as would appear
from
those canvassed below, is that none of them properly found the basis
for intervention by this court. I deal first with the
contention that
the commissioner irregularly treated the proceedings as
de novo.
As I understand the submission, the applicant contends that the
commissioner misdirected his enquiry by determining whether the
applicants dismissal substantively procedurally fair instead of
determining whether the compensation award previously granted ought
to have been substituted by an award of reinstatement. The applicant
has mistaken the purpose of the arbitration proceedings and
overlooked the terms of the order granted by this court on 11
September 2014 when the matter was remitted for rehearing. The terms
of that order specifically contemplate a
de novo
hearing –
in other words, the commissioner was required to determine at the
arbitration whether the applicants dismissal
substantively
procedurally fair. That is exactly what he did.
[11]
In regard to the applicant’s contention that the commissioner
failed to have regard to his assertion that the charges
brought
against him were duplicated, vague and embarrassing, the
commissioner’s award, from paragraph 52 to 54, reflect that
the
commissioner indeed had regard to the nature of the charges brought
against the applicant and their formulation. It is also
clear from
the commissioner’s analysis that he took into account all
material evidence concerning those charges. In so far
as the
applicant’s contention that the commissioner failed to have
regard to the third respondent’s delay in bringing
charges
against him, this is simply not so. The evidence regarding that delay
is reflected in paragraphs 37 to 41 of the award
and the
commissioner’s conclusion, that the delay in instituting
disciplinary proceedings was acceptable, is reflected in
paragraph
48. It is clear from the award and the record of the proceedings
under review that the commissioner considered all of
the relevant
evidence concerning the reasons for the delay in charging the
applicant, and based on the evidence before him, he
found that the
third respondent’s delay was not unreasonable. The
commissioner’s conduct is consistent with what is
required in
terms of the relevant test, i.e. to have regard to the material
evidence and to arrive at a conclusion which is reasonable
having
regard to the evidence. Again, the applicant’s complaint
appears to be that the commissioner’s decision was
incorrect, a
complaint that is insufficient to sustain a case on review.
[12]
Next, having regard to the disciplinary proceedings, the applicant
contains that the commissioner failed to consider that he
did not
understand the charges against him and that he did not have a
reasonable opportunity to prepare his defence. The evidence
before
the commissioner was that the applicant had received a notice to
attend the disciplinary hearing and that he had a reasonable
opportunity to prepare for the hearing and understood the chances
against him. At paragraph 42 of the award, the commissioner makes
reference to the testimony of a Mr Makgale, who conducted the
disciplinary hearing. His evidence was that the applicant had
received
a notice to attend the hearing within a reasonable time,
that he was represented by two union officials, that the charges were
read out to him and that he confirmed that he understood them. The
applicant pleaded not guilty to the charges and his representative
was allowed to cross-examine the third respondent’s witnesses
and the applicant was given an opportunity in every sense to
state
his case. This evidence is clear and uncontested. The finding by the
commissioner that there were no procedural defects in
the proceedings
is thus a finding to which a reasonable decision-maker could come.
[13]
In regard to the sanction of dismissal itself, and in particular the
applicant’s contention that the commissioner failed
to have
regard to the applicant clean disciplinary record, the evidence which
is recorded at paragraphs 60 and 61 of the award
clearly reflect that
the commissioner gave due consideration to all of the circumstances
of the case. While it may be correct that
the third respondent’s
witness Ms Huma did not itself specifically state that the
applicants conduct and destroy the
trust relationship, the
commissioner had regard to the context in which the applicant’s
misconduct had occurred and properly
considered all of the relevant
factors in reaching his conclusion that dismissal was an appropriate
sanction. In my view, the conclusion
by the commissioner cannot be
said to be so unreasonable that no reasonable decision maker could
come to it.
[14]
In my view, the applicant has failed to establish that the
commissioner misdirected himself, or that the conclusion to which
he
came is one that is so unreasonable that no reasonable decision maker
could come to it. The applicant may well consider that
the
commissioner came to conclusions that were wrong, but for the reasons
stated above, that is not sufficient for this court to
intervene.
For
the above reasons, I make the following order:
1.
The application is dismissed.
_____________________
Van Niekerk J
Judge
of the Labour Court
APPEARANCES
APPLICANT:
Mr Nadeem Mahomed, Nadeem Mahomed Attorneys
THIRD
RESPONDENT: Mr. Ludwig Frahm Arp, Fasken Martineau